Jammu & Kashmir High Court
Mohammad Amin Wali vs State Of Jammu And Kashmir And Ors. on 22 December, 1976
Equivalent citations: 1977CRILJ1684
ORDER G.M. Mir, J.
1. This is a petition Under Section 491 of the State Cr. P. C. for issuing a direction for release of one, Gh. Rasool Wali, who is alleged to be held illegally by the respondents 2 and 3 at Police station Kothi Bagh, Srinagar.
2. The petition has been submitted by the brother of the detenu namely, Mohd Amin Wali on the grounds that without any just cause or any legal justification his brother has been taken into custody and lodged in police station Kothi Bagh, Srinagar by respondent No. 3, who is a Dy. S. P. in the Crime Branch of the Bihar Police. It was alleged that the respondent No. 3 was bent upon to carry the detenu to Bihar and has given out that the detenu will be detained in a prison in Bihar. The petitioner has further alleged that the detenu was neither at the time of arrest given any grounds of detention nor have the same been communicated to him which fact was directly in violation of the spirit and letter of' the law under which he has reportedly been arrested, Another ground taken by the petitioner was that the law of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) has not been made applicable to the State of Jammu and Kashmir and as such no warrant issued under the said Act by the Govt. of Bihar could be executed in this State. His further contention was that the detenu cannot be removed from the State of Jammu and Kashmir without the consent of the Govt. of Jammu and Kashmir. It was also alleged that the arrest of the detenu being in violation of the mandate of the Criminal Procedure Code, the respondents be directed to set the detenu at liberty without any further delay in the interests of justice. 3. In reply the respondent No. 3 has submitted that the petitioner's brother namely Gh. Rasool Wali has been arrested in pursuance of the detention order bearing No. 1128-C dated 13-2-1976 issued by the Govt. of Bihar in exercise of its powers conferred by Sub-section (1) of Section 3 of the COFEPOSA of 1974. A copy of the said order was submitted alorigwith the reply affidavit which reads as under:
GOVERNMENT OF BIHAR HOME DEPARTMENT (SPECIAL SECTION) ORDER Patna Dated the 13 February, 1976.
No. 1128-C Whereas the Governor of Bihar is satisfied that with a view to preventing Shri Gulam Rasool Wali son of Shri G. M, Wali, Wali Sons, Dulgate, Srinagar from smuggling goods, it is necessary to make an order that he be detained ;
Now, therefore in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) the Governor of Bihar hereby directs that the said Shri Gulam Rasool Wali be detained ;
And, whereas the Governor of Bihar having considered and felt satisfied that it is necessary so to detain Shri Gulam Rasool Wali for dealing effectively with the Emergency declared under Clause (1) of Article 352 of the Constitution on the 25th June, 1975, the Governor of Bihar hereby makes declaration to that effect.
Shri Gulam Rasool Wali shall be detained in Special Central Jail Bhagalpur and shall be placed in Class IIIrd, By order of the Governor of Bihar Sd/- (H. K. Sahay) Under Secretary to Government Forwarded in triplicate to the Dy. Inspector General of Police Criminal Investigation Department, Bihar, Patna for immediate service. One copy should be given to the detenu, second copy kept in jail and third copy bearing the signature or thumb impression of the detenu in token of receipt should be returned to Govt. immediately.
In the reply affidavit it has been further stated that before arresting the detenu the contents of the aforesaid detention order were read out and explained to him and the copies thereof both in English and Hindi were handed over to him and the detenu in token of having received the said copies made endorsement on the detention order itself. It was further averred that the deponent was not required in law to seek consent from the State of Jammu and Kashmir in order to detain the said detenu in the Special Jail Bhagalpur (Bihar), which was the place of detention specified in the detention order. It was further alleged that the petitioner or the detenu has got no locus standi to file the petition in this Hon'ble Court against the order in question. It was further averred that the petition Under Section 491, Cr. P. C. was not maintainable in view of the fact that the authority that issued the detention order in question was not within the jurisdiction of this Hon'ble court and an order or direction could not be executed beyond the jurisdiction of this Court. In view of these facts it was prayed that the petition merited dismissal.
4. Along with the notice to the respondents for snowing cause as to why the petition in question be not admitted, a temporary stay order at the request of the petitioner was also issued directing the respondents not to remove the detenu outside the State of Jammu and Kashmir till further orders. In the reply affidavit the respondent No. 3 prayed for the vacation of this order also on the ground that its continuance would not be within law and that the same was likely to create legal and administrative difficulties.
5. The arguments with regard to the main petition as well as the stay order advanced by the, learned Counsel for both the parties continued to be heard for two days and finally when concluded on 3-12-1976, the orders with regard to the vacation of the stay order were immediately pronounced and the respondent No. 3 permitted to proceed further in accordance with the above referred to detention order.
6. In his submissions the learned Counsel for the petitioner Mr. P. L. Handoo, raised a number of contentions and submitted that an order directing the respondents be issued Under Section 491 Cr. P. C. for immediately setting at liberty the brother of the petitioner. His first contention was that the brother of the petitioner was being held in detention illegally inasmuch as the order of detention issued against him was dated "Patua the 13-2-1976" and could not in law be executed after a lapse of about nine months, i.e on 24-11-1976 the date on which he was taken into custody. Elucidating his point, Mr. Handoo referred me to Section 12A of the COFEPOSA which was introduced into the parent Act by virtue of an amending Act No. XXXV of 1975 and submitted that the order of detention having lost its validity could not be enforced now. In order to follow the argument it will be worthwhile to repro duce below Sub-sections (2) and (3) of Section 12A as the same were relevant for understanding and dealing with the argument. Following are the Sub-sections (2) and (3) of Section 12A of COFEPOSA :
12-A....
(2) When making an order of detention under this Act against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Ordinance, 1975, the Central Government or the State Government, or as the case may be the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in Sub-section (1) have been issued (hereafter in this section referred to as the emergency) and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned :
Provided that where such declaration Is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days.
(3) The question whether the detention of any person in respect of whom a declaration has been made Under Sub-section (2) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and there after at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration.
7. The contention of the learned Counsel was that it was incumbent on the appropriate Govt., in this case the Govt. of Bihar, Under Sub-section (3) above to reconsider within four mouths from the date of declaration made vide Sub-section (2) and thereafter at intervals not exceeding four months, the necessity for the continued detention of the person detained for effectively dealing with the emergency. If the appropriate Govt. on reconsideration thought it unnecessary, it may revoke the declaration made Under Sub-section (2) of Section 12A and release the detenu from detention. He submitted that the appropriate Govt. during the last nine months has not apparently reconsidered the matter and had not given thought to its continuance as the order in pursuance of which the petitioner's brother Was detained continued to be dated 13-2-1976 which obviously according to him showed that no reconsideration as required by law vide Sub-section (3) of Section 12A has been made by the appropriate Govt. On this basis Mr. Handoo contended that the order of detention has been rendered ineffective and inoperative and could not be held to be in accordance with law. On plain reading of Sub-section (3) of Section 12A as submitted by Mr. Malik and Mr. Raina, learned Counsel for the other side, the question of reconsideration Under Sub-section (3) would arise only in cases where the appopriate Govt. may deem it advisable to reconsider the matter with a view to revoke |the declaration made Under Sub-section (2) of Section 12A. To augment this forceful argument, it may further be added that in my view the provisions of Sub-section (3) of Section 12A will come into operation and take effect only in case two conditions are first fulfilled. The first and the foremost condition was that the person about whom a declaration Under Sub-section (2) had been made must have been actually detained and must have been in continued detention. When this condition was fulfilled, the appropriate Govt. was bound in law to reconsider within four months from the date of such declaration and also thereafter at Intervals not exceeding four months, the propriety or otherwise of revoking the declaration made Under Sub-section (2). And that was the second condition for attracting the application of the said law. In the instant case, however, it was obvious that the detenu had been taken into custody only on 24-11-1976 though the declaration Under Sub-section (2) with regard to his detention had been made much earlier. The question of revocation of such declaration may, if at all, arise after he completes four months in detention or even thereafter at intervals not exceeding our months and the period of detention shall be reckoned with effect from 2441-1976, the date when he was actually taken into custody and not from the date of issue of the declaration Under Sub-section (2). The contention has no force and is, therefore, rejected.
8. Mr. Handoo then referred to Section 4 of the COFEPOSA which provides that the detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Cr. P. C. 1973, His contention was that the arrest made in this case had not been made in accordance with the State Code of Criminal Procedure which was the corresponding law in force in this State. Without, however, going into details as to whether the arrest in this case has been effected not in accordance with the procedure laid down in the Code of the Jammu and Kashmir State, it may suffice to refer to another provision of the COFEPOSA itself which also has been introduced into the parent Act by amending Act No. XXXV of 1975. The relevant provision to which attention may be focussed was Section 5A. Sub-section (a) of aforesaid Section 5A declares that such order (order of detention Under Sub-section (1) of Section 3) shall not be invalid or inoperative merely because one or some of the grounds is or are:
(i) vague ;
(ii) non-existent ;
(iii) not relevant ;
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, The order of detention in question therefore could not be held to be inoperative because the arrest of the detenu was not made strictly in accordance with the provisions of the Criminal Procedure Code of the State for the, simple reason that the order cannot be declared to be ineffective or inoperative or invalid for any reason whatsoever vide (v) of Section 5A of COFEPOSA. Moreover, the warrant of arrest issued by the Governor of Bihar is to be treated as if the same had been issued by an authority under the Criminal Procedure Code of this State as is evident from Sub-section (g) of Section 2 of the COFEPOSA which in clear terms had laid down that in reference to a law in COFEPOSA which is not in force in the State of Jammu and Kashmir shall in relation to that State be construed as reference to the corresponding law in force in that state. On this basis also the contention of) the learned Counsel for the petitioner that the provisions of the Cr. P. C. have not been strictly followed in this case does not hold water.
9. Mr. Handoo next submitted that the Cr. P. Code as in force now in the rest of the country was in most ways different to that prevailing In this State : In this context he particularly referred to Section 491 of the Cr. P. C. which is still in force in this state while the same has been dropped from the new Cr. P. C. applicable to the rest of the country. His contention was that even if the operation of Article 21 of the Constitution has been suspended by the Presidential order during the emergency, it was still open for the High Court in this State to issue orders, directions or writs in the nature of Habeas Corpus Under Section 491 of the Cr. P. C. He has further said that Section 103 of the Constitution of Jammu and Kashmir also empowered High Court of this State to issue a writ of this nature, Mr. Handoo in support of his contention has referred me to certain observations made in Makhan Singh's case reported in AIR 1964 SC 881 : (1964) 1 Cri LJ 269 in which according to his reading of the ratio decidendi, it has been laid down that in spite of the Presidential order suspending enforcement of Fundamental rights under Articles 14, 21 and 22, the detention can be challenged on grounds of infringement of rights other than those specified in the Presidential order. He accordingly contended that the detention order in the instant case can be challenged on the ground that it is in violation of the mandatory provisions of the COFEPOSA. Before taking up for consideration the real import of the observations made in Makhan Singh's case by the Supreme Court to which reference has been made by Mr. Handoo, I would first like to apply my mind with regard to his contention that a writ in the nature of habeas corpus can be issued Under Section 103 of the Constitution of Jammu and Kashmir State, even though the petition itself was not submitted under that section of the constitution of the State. From a mere perusal of Section 103 it was obvious that the Writ in the nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari or any of them could be issued by the High Court of this State to any person or authority ; but the important condition was that the person or the authority must be or must have its existence within the State itself. In the instant case the order of detention having been issued by the Govt. of Bihar it was manifest that provisions of Section 103 of the State Constitution could not be effectively brought to bear on this case, except for a limited purpose of giving a direction of not so important a character to respondent No. 1 who happens to be within the jurisdiction of this Court at the moment. Moreover, the Govt. of Bihar that is the source of the impugned order is not a party to the present proceedings. Apart from the fact of the said authority being outside the State and thus not amenable to the jurisdiction of this Court Under Section 103 of the State Constitution, no order in law can be passed behind its back, against it, in the present proceedings. Section 103 of the State Constitution in most parts corresponds to the provisions contained in Article 226 of the Constitution of India as it stood before the recent amendment (i. e. the 42nd) to the Constitution.
10. On the recommendation of Law Commission Section 491 of the Cr. P. C, was dropped from the Criminal Procedure Code now prevalent in the rest of the country. It is true that this provision of law however still continues to be on the statute book of this State. The question as to whether the existence of Section 491 Cr. P. C, in the state law would make any appreciable difference so far as the case at hand is concerned, has been dealt with at length and conclusively decided in Makhan Singh's case and also in Mohan Chowdhury's case ,
11. In Makhan Singh's case 1964-1 Cri LJ 269(SC) the question that came up for determination was whether the writ of habeas corpus Under Section 491 Cr. P. C. could be issued while the Presidential order made under Article 359(1) of the Constitution was in force. The Presidential order in question was issued after the Chinese aggression in 1962 and emergency had been declared. Section 491 did exist in the Criminal Procedure Code at that time. The Court while holding that the detenu was in fact asking for the issue of a writ of habeas corpus held that the proceedings taken Under Section 491(1)(b) are not of such a distinctly separate character as would not fall under Article 359(1), It was further observed, "The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizen has accrued to the citizens of this country only after and as a result of the provisions of the constitution itself, and so there can be no doubt that when in the Section 491(1)(b) proceedings the detenus seek to challenge the validity of the impugned statutory provision and the rule, they are invoking their fundamental rights' under the constitution....In other words it is clear that intent of the detenu's right to challenge the legality of his detention which was available to him Under Section 491(1)(b) Cr. P. C. prior to the constitution has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution, and so, whenever A detenu relies upon his fundamental rights even in support of his petition made Under Section 491(1)(b) he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights".
The Supreme Court then said that, that is why the argument that Article 359(l) and the Presidential order issued under it do not apply to the proceedings Under Section 491(1)(b) cannot be sustained.
It was therefore obvious that during the currency of the emergency a writ for habeas corpus Under Section 491 Cr. P. C. or under Article 226 or Under Section 103 of the State Constitution or under any other law was not available to the detenu, The position of law as laid down in Makhan Singh's case by the Supreme Court has not only been amply elucidated and explained but also re-affirmed and confirmed with greater emphasis in . At the time when Makhan Singh's case came up for consideration in the Supreme Court, there was in operation the proclamation of emergency dated 26-10-1962 issued by the President under Article 352(1) on account of the Chinese aggression. The President had also issued an order under Article 359(1) suspending the right of any person to move any court for the enforcement of the rights conferred by Articles 21 and 22. "If such person has been deprived of any such rights under the Defence of India Ordinance, 1962 or any rule or order made thereunder." The contention of the State Govts, of Bombay and Punjab was that the Presidential Order created a bar which precluded the appellants from maintaining the petition Under Section 491(1)(b) of the Cr. P. C. The High Courts of these States upheld this contention. The Supreme Court after analysing the nature of the proceedings Under Section 491(1)(b) of the Cr. P. C, held that the prohibition contained in Article 359(1) and the Presidential order would apply as much to proceedings Under Section 491(1)(b) as those under Article 226(1) and Article 32(1). It was obvious therefore that on this view of law no petition Under Section 491(1)(b) was maintainable. Some observations of the Supreme Court in Makhan Singh's case however, in some quarters were interpreted so as to create an impression to the effect that it may be still open to the detenu to contend that his detention was illegal for the reason that the mandatory provisions of the Act have been contravened and that the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. The misunderstanding, if there was any, has been cleared and doubts about the real import of the judgment in Makhan Singh's case removed, in the very lucid judgment of Mr. Justice Bhagwati in the Jabalpore case and then also in judgments of other esteemed judges at various places in this famous and important pronouncement of law in general and at paras 355, 356 and 469 in particular. The Hon'ble Mr. Justice Bhagwati while holding that the particular observations made in the case of Makhan Singh were in the nature of obiter dicta further observed :
It may be noted that in that case the Presidential order dated 3-11-1962 which came up for consideration before the court was a conditional order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22 'only if he was deprived of any such rights under the Defence of India Act, 1962 or any rule or order made under it'. It was in (he context of this Presidential Order that the aforesaid observations were made by this Court.
12. On 25-6-1975 the President in exercise of powers conferred by Clause (1) of Article 352 of the Constitution was obliged to declare 'that grave emergency existed whereby the security of India is threatened by internal disturbances'. On 27-6-1975 the President declared that "the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution shall remain suspended for the period during which the proclamations of emergency made under Article 352 of the Constitution on 3-12-1971 and on 25-6-1975 are both in force". Subsequently the right to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution was also suspended. In the case before the Supreme Court amongst other points which fell for consideration and determination the main point was as to whether while the aforesaid presidential orders were in operation in respect of fundamental rights, mentioned in the said Presidential orders, would it or would it not affect the right of personal liberty at Common law or under statute law or under natural law. The Supreme Court observed in this regard that the submission of the respondents that a person in detention can come to a court of law in spite of the Presidential order and contend that a habeas corpus should be issued for his release is rooted in the enforcement of fundamental rights of liberty under Articles 21 and 22. It was, therefore, held that if courts will, in spite of the Presidential order, entertain such applications and allow the detenus to start or continue proceedings to enforce fundamental rights, Article 359(1) will be nullified. In para 127 of the judgment the Hon'ble C. J. has detailed four conclusions which his Lordship arrived at after a lengthy discourse on the subject and the first of these conclusions is that, In view of the Presidential order dated 27-6-1975 under Clause (1) Article 359 no person has locus standi to move any writ petition under Article 226 before the High Court for Habeas Corpus or any other writ or order or direction to enforce any right of the personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide.' Further, in para 400 of the same judgment the Hon'ble Beg J. has laid down that ;
A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it, recording a purported satisfaction to detain the petitioner under the Maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of Habeas Corpus. Once such an order is shown to exist in response to a notice for a writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fide of any kind or of non-compliance with any provision of the Act in Habeas Corpus proceedings.
Also at para 451 of the same judgment Hon'ble Chandrachud, J. has held that ;
The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less. That right along-with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it. Article 359(1) enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out the common morass of human rights. If the enforcement of the fundamental rights can be suspended during an emergency, it is hard to accept that the right to enforce non-fundamental rights relating to the same subject-matter should remain alive.
These conclusions clinch the whole matter. The petitioner in the instant case, therefore, could not move a writ of Habeas Corpus because he was in other words asking for the enforcement of his fundamental right under Article 21, the operation of which has been and stands suspended during the period of emergency under the proclamation of the President.
13. Further, there was no force in the contention of the learned Counsel for the petitioner that the Supreme Court judgment referred to above was given in a case which was under the MISA and as the present case was under another enactment which in many respects differed from the Act under discussion in therefore the principles laid down therein may not strictly be applicable in the instant case. I, however, am unable to appreciate this contention. The real question in both cases was as to whether any writ, or petition would in law lie in this Court in view of the proclamation of emergency being in force and in view of the Presidential order suspending the operation of Articles 14, 19, 21 and 22 and the only answer that can be given is in the negative as it would make little difference as to whether the petition was under the MISA or COFEPOSA or under Article 226 of the Constitution or Under Section 103 of the State Constitution.
14. The contention that the COFEPOSA was not applicable to the State of J. and K. or that the Govt. of Bihar was under legal obligation to seek permission for the removal of the detenu from this State to Bihsir and such like contentions mentioned in the petition were not pressed during the arguments but having considered these contentions on my own I am of the view that none of these deserve serious thought and are hereby rejected.
15. The petition therefore cannot be admitted and is as such dismissed in limine.